M.M v. Fargo Pub. Sch. Dist. No. 1, 20090121.

• Decision Date: 10 June 2010
• Docket Number: No. 20090121.,20090121.
• Parties: M.M. and Thomas Moore, Plaintiffs and Appellantsv.FARGO PUBLIC SCHOOL DISTRICT NO. 1 and Eugenia Hart, Defendants and Appellees.
• Court: North Dakota Supreme Court

783 N.W.2d 806

2010 ND 102

M.M. and Thomas Moore, Plaintiffs and Appellantsv.FARGO PUBLIC SCHOOL DISTRICT NO. 1 and Eugenia Hart, Defendants and Appellees.

No. 20090121.

Supreme Court of North Dakota.

June 10, 2010.

COPYRIGHT MATERIAL OMITTED

Michael W. Unger (argued), Minneapolis, MN, and Craig E. Johnson (appeared), Fargo, N.D., for plaintiffs and appellants.

Ronald H. McLean (argued) and Jane L. Dynes (on brief), Fargo, N.D., for defendant and appellee Fargo Public School District No. 1.

Michael Geiermann, Bismarck, N.D., for defendant and appellee Eugenia Hart.

CROTHERS, Justice.

[¶ 1] M.M. and Thomas Moore appeal from a judgment dismissing their personal injury action against Fargo Public School District No. 1 (“District”) and Eugenia Hart. We conclude the district court erred in ruling the recreational use immunity statutes, N.D.C.C. ch. 53-08, barred this personal injury action against the District. We reverse and remand for a new trial.

I

[¶ 2] In May 2004, M.M. was a 15-year-old ninth grade student at Discovery Middle School in Fargo. Hart was M.M.'s history teacher. As part of the curriculum for Hart's history class, students could participate in 60s Day, which was the culmination of a unit of study on the decade of the 1960s. Participation in 60s Day, consisting of a series of skits and other activities performed by students, resulted in a small number of points added to a student's grade. Begun by Hart as an annual event in the late 1990s, 60s Day was scheduled for May 7, 2004.

[¶ 3] During the 60s Day event in 2002, a former student, D.H., participated by performing a stunt with his bike. Performing before an audience in the school's auditorium, D.H. “jump[ed]” his bike from the auditorium stage to the floor 3 1/2 to 4 feet below. D.H. broke the left crank off of the bike during the stunt, but he was not injured. D.H.'s stunt, as well as the other performances that day, were video recorded, and D.H. was later provided a video of his stunt. D.H. was a friend of M.M.'s classmate, J.B. D.H. showed the video to J.B., and J.B. made a copy. According to J.B., Hart showed a video of the 2002 performances in her classroom as an example of 60s Day activities. J.B. decided to do the same stunt and approached M.M. about accompanying him so there “would be two people going off the stage at the same time.” According to J.B., he asked Hart “if we could do the stunt, if we could ride our bikes off the stage and I didn't get a yes or no answer.”

[¶ 4] On May 6, 2004, the day before 60s Day, J.B. and M.M. decided to practice the stunt after school in the school's auditorium. They had not received formal permission from Hart or school administrators to either practice or perform the stunt. Classes adjourned for the day shortly before 3:30 p.m., and teachers and administrators typically remained at the school until approximately 4 p.m. for supervision purposes. According to Hart, at approximately 3:30 p.m. she encountered M.M. who told her about the plans for the stunt, and she told him it was “not a good idea.” Hart then left the school to pick up her vehicle which had been serviced.

[¶ 5] The main entrance door to the auditorium was locked, but J.B. and M.M. found a side door to the auditorium which had been left ajar to accommodate the movement of instruments and equipment for a band concert scheduled that evening. Sometime between 3:45 p.m. and 4 p.m., J.B. and M.M. brought their bikes into the auditorium and removed chairs on the stage so they could practice their jumps. J.B. practiced first and successfully completed the stunt. However, M.M. crashed, striking his head on the floor of the auditorium, causing serious and permanent injuries. Thomas Moore testified that, after Hart was informed of the accident, she went to the hospital and told him she knew the boys were going to practice the jump, “she could have stopped it, should have stopped it, but did not and she took total responsibility for the incident.” Hart disputed Thomas Moore's description of their conversation at the hospital.

[¶ 6] In May 2007, M.M. and his father, Thomas Moore, brought this personal injury action against the District and Hart. They claimed the District was liable for the negligent actions of Hart, its employee, acting in the course of her employment. They also claimed Hart was separately and personally liable for M.M's injuries. Before trial, the district court granted the District's motion for summary judgment on the ground that the recreational use immunity statutes, N.D.C.C. ch. 53-08, shielded the District from any liability for the accident because it occurred on school property. The court further ruled no evidence had been presented to support a claim under the “willful and malicious” exception to recreational use immunity. The court granted Hart's motion for summary judgment in part, concluding there was no evidence to support the factual allegation contained in M.M. and Thomas Moore's complaint that Hart “suggested” M.M. perform the bike stunt as part of the 60s Day activities. However, the court denied Hart's summary judgment motion in part, concluding a question of fact existed concerning the complaint's factual allegation that Hart failed to prevent M.M. from practicing the stunt. The jury returned a verdict finding Hart did not commit gross negligence, recklessness, or willful or wanton misconduct, and the court dismissed the action in its entirety.

II

[¶ 7] M.M. and Thomas Moore argue the district court erred in ruling as a matter of law that the recreational use immunity statutes shielded the District from any liability in this case.

[¶ 8] Our standard of review for summary judgment is well-established.

“Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.”

Lucas v. Riverside Park Condominiums Unit Owners Ass'n, 2009 ND 217, ¶ 16, 776 N.W.2d 801 (quoting Barbie v. Minko Constr. Inc., 2009 ND 99, ¶ 5, 766 N.W.2d 458).

[¶ 9] “Under North Dakota law for premises liability, general negligence principles govern a landowner's duty of care to persons who are not trespassers on the premises.” Schmidt v. Gateway Community Fellowship, 2010 ND 69, ¶ 8, 781 N.W.2d 200. The same principles generally govern the liability of political subdivisions, which include school districts. See Azure v. Belcourt Pub. Sch. Dist., 2004 ND 128, ¶ 4, 681 N.W.2d 816. Section 32-12.1-03(1), N.D.C.C., provides in relevant part:

“Each political subdivision is liable for money damages for injuries when the injuries are proximately caused by the negligence or wrongful act or omission of any employee acting within the scope of the employee's employment or office under circumstances in which the employee would be personally liable to a claimant in accordance with the laws of this state, or injury caused from some condition or use of tangible property, real or personal, under circumstances in which the political subdivision, if a private person, would be liable to the claimant.”

Section 32-12.1-03(1), N.D.C.C., “provides two separate and independent grounds upon which a political subdivision can be held liable for injuries: (1) a political subdivision can be liable for injuries caused by some condition or use of property in the same manner as a private person, and (2) a political subdivision can be liable for injuries caused by the negligence or wrongful act or omission of an employee acting within the scope of the employee's employment.” Fastow v. Burleigh County Water Res. Dist., 415 N.W.2d 505, 509 (N.D.1987).

[¶ 10] The recreational use immunity statutes, N.D.C.C. ch. 53-08, provide an exception to political subdivision liability under N.D.C.C. § 32-12.1-03(1). Section 53-08-02, N.D.C.C., provides that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.” Section 53-08-03, N.D.C.C., further states:

“Subject to the provisions of section 53-08-05, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:

1. Extend any assurance that the premises are safe for any purpose;

2. Confer upon such persons the legal status of an invitee or licensee to whom a duty of care is owed; or

3. Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons.”

For purposes of N.D.C.C. ch. 53-08, “[l]and” is defined as including “all public and private land, roads, water, watercourses, and ways and buildings, structures, and machinery or equipment thereon.” N.D.C.C. § 53-08-01(2). An “[o]wner” is defined as including a “tenant, lessee, occupant, or person in control of the premises.” N.D.C.C. § 53-08-01(3). “Recreational purposes” are broadly defined as including “any activity engaged in for the purpose of exercise,...